August 2, 2002

By Thanassis Cambanis, Globe Staff 

Boston Globe

The MBTA won't have to post controversial ads from a group advocating the legalization of marijuana after spending more than $500,000 to fight a lawsuit filed by Change the Climate, a federal judge ruled yesterday.

But in his decision, US District Judge Robert E. Keeton ordered the T to create consistent, fair, and comprehensible guidelines to avoid legal quagmires over political or potentially offensive ads.

Keeton called the T's advertising guidelines ''constitutionally flawed,'' but stopped short of ordering it to post Change the Climate's campaign, which features slogans such as ''Police are too important, too valuable, too good to waste on arresting people for marijuana when real criminals are on the loose.''

''We think the court vindicated the T's stated goal of protecting the thousands of schoolchildren who ride the T every day from offensive advertising,'' MBTA general manager Michael T. Mulhern said.

This spring Mulhern acknowledged that the T needs to revamp its advertising guidelines, which are more restrictive than most urban transit systems in the country and have been targeted in several lawsuits for being inconsistent, unclear and unconstitutional.

Change the Climate filed a federal lawsuit two years ago, accusing the T of violating the group's First Amendment rights. Since the T accepts some ads with political content, the group argued, it cannot discriminate against viewpoints it finds disagreeable.

But Keeton ruled that subway stations and buses don't meet the legal standard of a public forum. ''It would be unacceptable to make the MBTA's advertising space subject to the same standard as a public park, subjecting captive audiences of commuters, tourists, and schoolchildren to all sorts of graphic advertisements,'' Keeton wrote.

Furthermore, Keeton said, Change the Climate's advertisements ''promote the use of marijuana in subtle ways.''

Attorneys representing Change the Climate from the Massachusetts Civil Liberties Union and the law firm Rodgers, Powers & Schwartz were on vacation and could not be reached for comment.

The T must create a broad-based advisory board to help craft new advertising guidelines, which are scheduled to be completed this fall, Keeton ordered.

Mulhern said the T would include groups like Change the Climate in the advisory board.

''The T, like any public agency, takes very seriously constitutional issues such as freedom of speech,'' he said.